The Volokh Conspiracy

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Free Speech

No First Amendment Right to March on a Freeway


From State v. Dornfeld, decided yesterday by the Minnesota Court of Appeals (Presiding Judge Francis Connolly, joined by Judges Michelle Larkin & Randall Slieter):

Appellant challenges her petty-misdemeanor conviction of being a pedestrian on a controlled-access highway, arguing … [among other things that] the statute under which she was convicted violates the First Amendment, she was singled out for discriminatory prosecution, and her prosecution was barred by government estoppel….

In November 2021, appellant Tess Dornfeld was charged with a petty misdemeanor for being a pedestrian on a controlled-access highway in November 2020, when she was participating in a demonstration as part of a group of about 600 people who walked onto I-94, a controlled access highway….

Appellant argues that "her arrest, prosecution, and conviction violate her constitutional right to freedom of speech" because: (1) her conduct on I-94, a controlled access highway, was protected speech; (2) Minn. Stat. § 169.305, subd. 1(c) (2022), providing that the commissioner of transportation may prohibit or regulate the use of any controlled access highway by pedestrians if that use is incompatible with the normal and safe flow of traffic, is a state regulation of free speech; (3) the constitutionality of such regulations is subject to intermediate scrutiny, meaning that the regulation must be narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication, and (4) the action of the police in arresting appellant was not narrowly tailored to serve the government's interest because the police did not permit protesters to leave I-94.

But appellant does not explain her implicit view that her right to free speech supersedes the rights of those travelling on a controlled-access highway to travel in safety, nor does she explain why her arrest deprived her of alternative channels of communication. She has not shown that her right to free speech was violated by the commissioner's right to regulate pedestrians' use of a controlled-access highway or by the police's activity to enforce that regulation….

Appellant argues that her "arrest, prosecution, and conviction amount to a selective prosecution in violation of her constitutional rights to due process and equal protection." A claim of selective prosecution requires a claimant to make a prima facie case by showing, by a clear preponderance of the evidence, that (1) the claimant has been singled out for prosecution while others have not been prosecuted and (2) the government's discriminatory enforcement was invidious or in bad faith, based upon such considerations as race, religion, or a desire to prevent a person's exercise of a constitutional right. The defendant bears a "heavy burden" of establishing these criteria.

The district court concluded that appellant

did not set forth a prima facie case of selective prosecution. She has not established that other protesters similar to her were not charged and that she was singled out. Nor has she shown that the prosecution of this case is in bad faith or based on impermissible considerations, including a desire to prevent her exercise of a constitutional right.

Appellant does not refute this conclusion.

Instead, she argues on appeal that the alleged selective prosecution resulted from the fact that she and the other protesters "were singled out for arrest … in a way that no other peaceful marchers had previously experienced." As mentioned earlier, the testimony of an experienced state trooper dealt with this argument, explaining that, for the first time, sufficient resources were available to issue citations to all the participants in a large protest. Appellant does not make a prima facie case for a selective-prosecution claim vis-à-vis either her fellow-protesters or those who engaged in previous protests….

Appellant made two arguments to support her governmental-estoppel claim: first, that other protesters in previous protests were not prosecuted and she relied on the government's inaction in those cases, and second, that the governor, the attorney general, and the mayor had encouraged peaceful protests in May 2020. In a well written opinion, the district court stated that it could conclude neither "that a failure to cite every highway protester in recent Minnesota history amounts to an affirmative government action that now renders Minn. Stat. § 169.305 unenforceable" nor "that public statements made in May 2020 by state and local officials to encourage protesters to demonstrate peacefully … are affirmative and false misrepresentations that led protesters reasonably to believe they were free to march onto I-94 six months later in protest of the November 2020 election."

Appellant now argues that "[a]s a result of the government's advisement and knowing acquiescence indicating that a peaceful march on a public thoroughfare is lawful, this prosecution must be estopped." She supports her argument only with her views of what M.G. would have testified to and the claim that this testimony would have "amounted to a government advisement, or at least knowing acquiescence, of the legality of peaceful marches on public thoroughfares" and that therefore, "the state must be estopped from prosecution." But appellant does not present any facts showing that the government officials, knowing that pedestrian protests on controlled-access highways were not permitted, affirmatively mislead protesters into believing they were permitted….

Sounds right to me.